Making a will,what to do about provision for SN child??

[wrinklytum]

Ok,after DPs recent hospitalisation I thought it was really important that we made a will now,especially as we are not married.It would be quite simple really I would leave stuff to dp and he to me,A "Mirror" will if you like.

My only major concern is with regard to the children really.In the long term.If we were both to die I would want our assets to be divided equally between the two of them.The problem is dd has special needs and I don't know if she will have the intellectual capacity to understand such issues.Could ds be given "Power of attorney" to manage her affairs for instance if she needed specialist care in the future in terms of helping her with everyday activities and so on.Now obviously I am sincerely hoping ds will continue to adore his little sis but how can I ensure that her money is used for her needs only should,heaven forbid,he turn out to be a wrong 'un??Can it be put in some kind of trust that can link it only to her care needs or something??Am complete ignoramus on such things,Please help Legal Bods TIA,Wrinkly xxxx

it is really difficult issue - so much so that my DH and I still haven't organised it - butthat is mostly because we have no one who could care for all three including DS2 with profound special needs.
i do know though that you can leave money in trust for one child to be overseen by a sibling BUT with two other trustees to keep things as they should be.I know only two well how important this is having watched my brother plunder his sons funds
I think MIND have good info on this.
My issue is slightly different as DS2 could not possibly look after his own affairs. Also we have been told that it is much better to leave him nothing as any state support for him when his is older may be clawed back out of any assets. So our plan is to leave estate to two sibs and ensure that DS2 is looked after by appointed carers/trustees ( to include sibs).
sorry - was that giberish?

Our DD does not have SN, but we have set up a trust for her anyway, in case both of us go together. She will not get any control of the money until she's 24 (there is NO legal obligation for minors to have access to the money once they're 18) and we have different guardians and financials trustees named. So you could set up a financial trust, and your DD's carers would apply to the trustees for any money that they needed. We have 3 trustees named, partly to spread the responsibility and also in case one of them can't perform the tasks needed (old age/ill health/other responsibilities). Having guardians and trustees as separate people also minimises the chances of a bad apple plundering the trust.
I hope that helps, it really is a minefield, isn't it?

No ,thanks a lot for that Pagwatch.It wasn't gibberish at all.I seriously have a feeling that dd WON'T be able to manage her affairs,she is functioning well below the capacity of most 2.5 year olds.we have no formal dx yet but my gut instinct thinks that her she will be dx with Moderate to severe LD when tested.DP,ever the optimist seems to think she will have a miraculous progression and be walking and talking like a typical child etc but I am more .I think he is still in quite a lot of denial but then as he says I am the pessimistic one(.Obviously it is early to know he r full potential BUT She cannot say more than 2 words,has some quite repetitve behaviours a "small but not microcephalic" head, mixed hyper and hypotonia and ataxia,she cannot walk independently but has splints and a kay walker.She can recognise pictures by pointing,quite a number of objects,but she cannot for instance suss out simple jigsaw puzzles.She can stack blocks,about 4 with encouragement.)

How awful about your brother

Interesting point about the stsae provision bit.

Thanks for your reply,food for thought.

Thanks MrsTM

I can tell you a bit about the situation in Scotland, which I think will be similar to that elsewhere. As people have already said, a trust is the best thing to do, but it has to be a discretionary trust (ie, the trustees have the discretion to refuse or grant a request).

It's better to have a "live" trust, I believe, although I'm not sure why. This means that the trust comes into operation before you die. Obviously, this can only happen if you have some money to put into it. Friends and relatives can also add to the trust.

If you want to leave your property to your child so that he or she can continue to live in it, it can also be left to the trust, but you'd have to make sure there was enough money in the trust to maintain the property.

Money held in trust is not taken into account when calculating benefits, BTW.

No-one can be power of attorny for your DD if she does not have capapcity to give it, but you can (in Scotland, anyway) apply to a court for someone to be a welfare guardian (and/ or a financial guardian).

I think Mencap has a trust service, where they would administer the trust, with your appointed trustees, for a small annual fee.

I have a brochure about wills and one about trusts that I can send you if you CAT me.

It's a minefield, and a really difficult thing to think about. I hope you get it sorted out.

Our DS has SN (have been told that at 20 her will have development of a 10 yr old, We are going to prove them wrong on that one!) fistly we chose guardians for the children.

This person along with my BIL (Barrister) are trustees.

We have put some assets (inc the house iirc) into a trust so the DC will not have to wait for probate to access funds.

We have invested heavily in several policies including one which will pay a lump sum of £200K directly into a trust to be administered solely for the care of DS as he will never live independently. He will recieve half of everything we leave also managed by the trustees.

DD (who is NT) will recieve half of everything we leave managed by the trustees until she is 21. I hope she doesn't get the himp about the smaller payout!

Mencap also have a lot of information about wills and trusts.

We were told that the best way to leave money to our SEN child is in a discretionary trust. We were also advised that if you are not seen to have made "reasonable provision" for a SEN child that the state then has to care for the state can and will contest the will.

Money left in a discretionary trust should not prevent State help.

You need to see a solicitor really. If you son needs care from SS as an adult you don't want him to have his own funds (ds1 would get through anything we left him paying for his care in days). A solicitor can set it up in a suitable disabled trust.

We need to change ours actually.

Ooh have been working offline and just got back to loads of mesages,thanks guys
Think we really need to see a solicitor